NISSAN MOTOR CO., LTD. v. Alvarez, 4D03-2138.

• Decision Date: 17 November 2004
• Docket Number: No. 4D03-2138.,4D03-2138.
• Citation: 891 So.2d 4
• Parties: NISSAN MOTOR CO., LTD., a foreign corporation, Nissan Motor Corp. In U.S.A., a foreign corporation, and Vernon Scott Motors, a Florida corporation, Appellants, v. Andrea Robin ALVAREZ and Kevin R. Alvarez, Appellees.
• Court: Florida District Court of Appeals

891 So.2d 4

NISSAN MOTOR CO., LTD., a foreign corporation, Nissan Motor Corp. In U.S.A., a foreign corporation, and Vernon Scott Motors, a Florida corporation, Appellants, v. Andrea Robin ALVAREZ and Kevin R. Alvarez, Appellees.

No. 4D03-2138.

District Court of Appeal of Florida, Fourth District.

November 17, 2004.

Rehearing Denied February 1, 2005.

George N. Meros, Jr. and Carlos G. Muniz of Gray Robinson, P.A., Tallahassee, W.L. Kirk, Jr., and Robert J. Rudock of Rumberger, Kirk & Caldwell, P.A., Miami, for appellants.

Edna L. Caruso of Caruso & Burlington, P.A., West Palm Beach, Robert W. Kelley and John J. Uustal of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellees.

HAZOURI, J.

Andrea Alvarez and her husband Kevin Alvarez sued Nissan Motor Co. Ltd., Nissan Motor Corp. In U.S.A., and Vernon Scott Motors (collectively "Nissan") in a products liability case involving a rollover of a Nissan Pathfinder. The suit alleged claims based on strict liability and negligence. The Alvarezes sought to prove that the accident was caused by the design defect in that the vehicle lacked "rollover" immunity. The jury found no defect in the vehicle, but nonetheless concluded that Nissan was negligent in the design, manufacture, assembly, distribution, or sale of the vehicle.

Nissan filed a post-trial Motion for Judgment Notwithstanding the Verdict, Motion for Judgment in Accordance with Motion for Directed Verdict, and Motion for New Trial. The trial court denied these motions and entered a Final Judgment in accordance with the jury verdict. We reverse.

On October 17, 1997, Andrea Alvarez was driving on the highway in her 1993 Nissan Pathfinder. She was alone in the vehicle. Alvarez inadvertently drove off the road into the center median. She immediately steered to the right to re-enter the roadway. However, she lost control of the vehicle and the vehicle rolled over onto the driver's side. Alvarez was injured during the accident and as a result of her injuries her left arm was amputated at the elbow.

The Alvarezes in their suit alleged: 1) strict liability based on a design defect that made the vehicle unreasonably dangerous and 2) negligence based on Nissan's duty to use reasonable care in the design, manufacture, assembly, distribution, and/or sale of its vehicle. Specifically, the Alvarezes alleged that Nissan negligently failed to give proper warnings to the purchaser concerning the vehicle's dangerous condition and propensities.

During the course of the jury trial, the focus of the Alvarezes' claim was that the Pathfinder contained a design defect which made it more susceptible to "rollovers." The Alvarezes presented a significant amount of expert testimony and evidence on the design of the vehicle, including various testing that had been performed which purported to support her theory that the vehicle had an unreasonably dangerous propensity to rollover. The Alvarezes argued that the vehicle was defective and that Nissan knew that the vehicle was defective when it sold it. In response, Nissan presented its own expert witnesses and evidence that the vehicle did not have a design defect. The Alvarezes presented no evidence on the issue of negligent failure to warn. The Alvarezes confined their proof of negligence solely to the claim of a negligent design defect.

At the close of the trial, the trial court instructed the jury on both the negligence and strict liability claims. The negligence instruction was as follows:

The issue for your determination on the claim of negligence made by the plaintiff against the defendants is whether the defendants, Nissan, were negligent in the design, manufacture, assembly or distribution, and as to Vernon Scott Motors, the sale of the 1993 Nissan Pathfinder; and, if so, whether such negligence was a legal cause of any injuries sustained by the plaintiff.¹

The strict liability instruction was as follows:

The issue for your determination on the plaintiffs' claim of strict liability against the defendants, Nissan Motor Company, Limited, Nissan Motor Corporation, United States of America, and Vernon Scott Motors, is whether the 1993 Nissan Pathfinder was, by reason of its design, in a condition unreasonably dangerous to the plaintiff; and the product was expected to, and did reach the user without substantial change affecting its condition.

The jury was then excused for deliberations. The verdict form required the jury to answer the following questions:

1. Did the Defendants, Nissan Motor Co., Ltd., Nissan Motor Corp. in U.S.A., and Vernon Scott Motors, place the Nissan Pathfinder on the market with a defect which was a legal cause of damage to the Plaintiff, Andrea Alvarez?

2. Was there negligence on the part of the Defendants Nissan Motor Co. Ltd. and Nissan Motor Corp. in U.S.A. which was a legal cause of damage to the Plaintiff, Andrea Alvarez?²

The form also required the jurors to set out the amount of damages awarded.

At the conclusion of these deliberations, the jury returned a verdict finding there was no design defect. However, the jury found that Nissan was negligent. In addition, the jury found that Andrea Alvarez was comparatively negligent and assigned fault as follows: Nissan 51%; Andrea Alvarez 49%. Andrea Alvarez was awarded total damages of $3,057,000 and her husband was awarded total damages of $415,000. The trial court entered a Final Judgment in accordance with the jury verdict.

Nissan argues that the jury's verdict is inconsistent because under the evidence presented at trial, the jury could not have found Nissan liable for negligence while also specifically finding that there was no design defect. In response, the Alvarezes argue that the jury's verdict was proper because there was sufficient evidence to find Nissan negligent for "failure to warn" which does not require a finding of a design defect. The trial court agreed with the Alvarezes. In the order denying Nissan's post-trial motions, the trial court stated that it found that the Alvarezes presented sufficient evidence and argument to establish that Nissan was negligent, independent of the alleged defect. We disagree.

The Alvarezes' Amended Complaint alleged causes of action for both strict liability and negligence. As part of the negligence claim, the Alvarezes specifically alleged that Nissan failed to give proper warnings. However, at trial, the record reflects that the Alvarezes abandoned the failure to warn claim and instead focused entirely on the claim of a design defect. If the only evidence of negligence that the Alvarezes presented at trial related to the design defect, then the jury could not have found Nissan liable for negligence while finding that the vehicle did not contain a design defect.

In Terex Corp. v. Bell, 689 So.2d 1122 (Fla. 5th DCA 1997), the plaintiff and his wife brought suit after he was injured operating a crane, which had been sold by the defendant. The jury found that the crane was not defective, but held the defendant 43% negligent. Id. On appeal, the fifth district reversed the verdict on the basis that it was inconsistent. Id. at 1123. The fifth district stated, "[b]ecause the only evidence of negligence offered against appellant at trial related to its alleged negligent design and the jury found there was no design defect, there was no other evidence to sustain its verdict." Id.; see also Anheuser-Busch, Inc. v. Lenz, 669 So.2d 271 (Fla. 5th DCA 1996) (brewer was not liable for injuries suffered by restaurant employee when beer bottle exploded where jury specifically found no defect in bottle when it was placed on the market and there was no other evidence of negligence on the part of the brewer). The fifth district's holding in Terex Corp. identifies the central issue in the instant case: whether there was evidence at trial on which the jury could find Nissan liable for the negligent "failure to warn" claim or whether the only evidence of negligence presented at trial related to the alleged design defect.

If there was sufficient evidence at trial from which the jury could find that Nissan was negligent in failing to warn, then the jury's verdict was not necessarily inconsistent. This was the case in Perry v. Red Wing Shoe Co., 597 So.2d 821 (Fla. 3d DCA 1992). In Perry, the plaintiffs sued the defendant on both strict liability and negligence theories. Id. at 822. The jury returned a verdict in favor of the defendant on the strict liability count and specifically found that the product (a boot) contained no defect. Id. However, on the negligence count the jury found the defendant 47% negligent. Id. On appeal, the third district held that the jury's verdict was not inconsistent because under the evidence presented at trial a jury could reasonably have determined that the defendant failed to warn prospective purchasers about the product and that the failure to warn was the proximate cause of the plaintiffs' injuries. Id. at 823. Therefore, "the jury's finding of negligence... [wa]s not foreclosed by its rejection of the claim of strict liability." Id.

A similar situation was addressed by this Court in Moorman v. American Safety Equipment, 594 So.2d 795 (Fla. 4th DCA 1992). In M...